法律制度二元性下行政垄断“滥用行政权力”的司法审查规则续造

Continuation of Judicial Review Rules for Administrative Monopoly"Abuse of Administrative Power":a Legal Duality Perspective

行政垄断同时受到《行政诉讼法》与《反垄断法》的双重规范,在法律制度上呈现程序法与实体法的二元体系格局,由此影响滥用行政权力的审查规则。法律制度的二元性本质上反映了实体法与程序法在法律适用中的相对立关系,传统应对之策通常诉诸于价值选择论和单独立法论。但这两种立论都过于强调实体法与程序法的区隔,而忽视二者本身的统一。事实上,实体法与程序法在正义内容上的根本一致性及程序法之间行民交叉的衔接,都为二元法律制度在行政垄断滥用行政权力的司法审查问题上创造了弥合的契机。而寻求实体法与程序法在行政垄断规制上的统一,则需重返二者共同的核心范畴--行政垄断行为的自身建构,通过修正行政垄断行为的实体要件论,兼顾实体法与程序法在司法审查中的不同要求,从而疏通《行政诉讼法》与《反垄断法》之间的适用冲突。

Administrative monopoly is regulated by both the Administrative Procedure Law and the Anti-Monopoly Law,which presents a dual structure of procedural law and substantive law in the legal system,thus affecting the review rules for abuse of administrative power.The duality of the legal system essentially reflects the relative relationship between substantive law and procedural law in the application of law,and value selection theory and separate legislation theory are resorted to as traditional countermeasures.However,both theories overemphasize the distinction between substantive law and procedural law,and ignore the unity of the two.Actually,some opportunities will help the dualistic legal system to converge in regard to the judicial review on abuse of administrative power of administrative monopoly:the fundamental consistency of the content of justice between the substantive law and the procedural law,the trend of privatization of public law and publicization of private law among the substantive law,as well as the joint of administrative and civil dispute overlapping cases among procedural law.The unification of substantive law and procedural law in the regulation of administrative monopolies requires a return to the core category common to the both:self-construction of administrative monopoly behavior.Through amending the theory of substantive elements of administrative monopoly behavior while considering both substantive law and procedural law,the conflicts of application between the Administrative Procedure Law and the Anti-Monopoly Law shall be cleared.